An Ordinance to provide for the vesting in BOT International (H.K.) Ltd. of the undertaking of Mitsubishi Finance (Hong Kong) Limited and for other related purposes.
[23 February 1996]
(Format changes—E.R. 3 of 2021)
Mitsubishi Finance (Hong Kong) Limited (hereinafter called Mitsubishi Finance) is a company incorporated under the law of Hong Kong having its registered office in Hong Kong and is a wholly-owned subsidiary of The Mitsubishi Bank, Limited, a company organised under the laws of Japan;
BOT International (H.K.) Ltd. (hereinafter called BOT International) is a company incorporated under the law of Hong Kong having its registered office in Hong Kong and is a wholly-owned subsidiary of The Bank of Tokyo, Ltd., a company organised under the laws of Japan;
each of Mitsubishi Finance and BOT International holds a restricted banking licence granted under the Banking Ordinance (Cap. 155) and is carrying on the business of taking deposits and providing financial services in Hong Kong;
The Bank of Tokyo, Ltd. and The Mitsubishi Bank, Limited have pursuant to an agreement executed on their respective behalves on 19 May, 1995 agreed that the business, assets and liabilities of The Bank of Tokyo, Ltd. will be merged into The Mitsubishi Bank, Limited on 1 April, 1996 (or such other date as the parties may agree) and further that the name of The Mitsubishi Bank, Limited will be changed to The Bank of Tokyo-Mitsubishi, Ltd. on that day;
pursuant to the merger referred to in paragraph (4) above and for the rationalisation of the group business of The Bank of Tokyo-Mitsubishi, Ltd. in Hong Kong as from the appointed day and for the better conduct of the businesses of BOT International and Mitsubishi Finance after such merger, BOT International and Mitsubishi Finance have on 4 December 1995 entered into a merger agreement which provided for the undertaking of Mitsubishi Finance to be succeeded to by BOT International on the appointed day;
in view of the extent of the contractual and other legal relationships affecting the conduct of the undertaking of Mitsubishi Finance, it is expedient to make provision to facilitate such merger without interference with the conduct and continuity of the respective businesses of Mitsubishi Finance and BOT International.
(Enacting provision omitted—E.R. 3 of 2021)
This Ordinance may be cited as The Bank of Tokyo-Mitsubishi (Merger of Subsidiaries) Ordinance.
In this Ordinance, unless the subject or context otherwise requires—
appointed day (指定日期) means such day and time as may be appointed pursuant to section 3; BOT International (東銀國際) means BOT International (H.K.) Limited; customer (客戶) means any person having a banking account or other dealing, transaction or arrangement with Mitsubishi Finance or, as the case may be, BOT International; excluded property (除外財產) means— (a)the common seal of Mitsubishi Finance; (b)documents (other than accounting records) required to be kept by Mitsubishi Finance pursuant to the Companies Ordinance (Cap. 32) as in force from time to time before the commencement date* of section 2 of Schedule 9 to the Companies Ordinance (Cap. 622); and (Amended 28 of 2012 ss. 912 & 920) (c)the rights and benefits of Mitsubishi Finance arising out of or in connection with the merger agreement; existing (現有) means existing, outstanding or in force immediately before the appointed day; liabilities (法律責任) includes duties and obligations of every description (whether present or future, actual or contingent); merger agreement (合併協議) means the merger agreement executed on 4 December 1995 on behalf of BOT International and Mitsubishi Finance in relation to the transfer of the undertaking; Mitsubishi Finance (三菱財務) means Mitsubishi Finance (Hong Kong) Limited; property (財產) means property and assets of every description and rights of every description (whether present or future, actual or contingent), and includes property held on trust and securities, benefits and powers of every description but does not include the excluded property; security (抵押) includes a mortgage or charge (whether legal or equitable and including any sub-mortgage), debenture, bill of exchange, promissory note, guarantee, lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, agreement or undertaking (whether in writing or not) or other means (in each case made, granted, arising or subsisting under any applicable law) of securing payment or discharge of a debt or liability (whether present or future, actual or contingent); undertaking (業務) means the business and all existing property and liabilities of Mitsubishi Finance of whatsoever nature other than the excluded property; will (遺囑) includes a codicil and any other testamentary writing.(Amended E.R. 3 of 2021)
Any reference in this Ordinance to property or liabilities of Mitsubishi Finance is a reference to property or liabilities to which Mitsubishi Finance is for the time being entitled or subject (whether beneficially or in any fiduciary capacity), wherever such property or liabilities are situated or arise and whether or not capable of being transferred or assigned by Mitsubishi Finance, and whether Mitsubishi Finance is entitled to such property or subject to such liabilities under the law of Hong Kong or under the law of any country or territory outside Hong Kong.
Any body politic or corporate and any other person or persons whose rights are affected by any of the provisions of this Ordinance shall be deemed to be mentioned herein.
The directors of Mitsubishi Finance may appoint a day and a time of that day for the purpose of this Ordinance. BOT International and Mitsubishi Finance shall give joint notice in the Gazette of the day so appointed save that, in the event that such day proves not to be the appointed day for any reason, BOT International and Mitsubishi Finance shall give joint notice in the Gazette to that effect and shall again give joint notice in the Gazette stating the next day so appointed or, as the case may be, the day which was the appointed day.
On the appointed day by virtue of this Ordinance the authorized and issued share capital of Mitsubishi Finance shall be reduced to US$10 comprising 10 ordinary shares of US$1 each and 40,999,990 ordinary shares of US$1 each shall be cancelled.
Not later than 7 days before the appointed day Mitsubishi Finance shall deliver to the Registrar of Companies a copy of this Ordinance together with a minute, signed by a director or the secretary of BOT International, confirming the reduction of share capital and cancellation of shares referred to in subsection (1).
The Registrar of Companies shall, pursuant to this Ordinance, register the copy of the Ordinance and the minute delivered to him pursuant to subsection (2) and on the appointed day shall certify under his hand the registration of the Ordinance and the minute which certificate shall be conclusive evidence of the reduction of the authorised and issued share capital of Mitsubishi Finance.
The restricted banking licence of Mitsubishi Finance shall be revoked on a day to be appointed by the Hong Kong Monetary Authority which day shall be published in the Gazette.
On the appointed day the undertaking shall by virtue of this Ordinance and without further act or deed be transferred to, and vest in, BOT International to the intent that BOT International shall succeed to the undertaking as if in all respects BOT International were the same person in law as Mitsubishi Finance.
Any property deemed to be vested in BOT International by virtue of this Ordinance which immediately before the appointed day was held by Mitsubishi Finance, whether alone or jointly with any other person, as trustee or custodian trustee of any trust deed, settlement, covenant, agreement or will (whether originally so appointed or not, and whether appointed under hand or seal, or by order of any court or otherwise), or as executor of the will, or administrator of the estate, of a deceased person or as judicial trustee appointed by order of any court, or in any other fiduciary capacity, shall, on and from the appointed day, be held by BOT International alone or, as the case may be, jointly with such other person, in the same capacity upon the trusts, and with and subject to the powers, provisions and liabilities, applicable thereto respectively.
Any existing instrument or order of any court under or by virtue of which any property became vested in Mitsubishi Finance in any such fiduciary capacity as is referred to in subsection (1) (including in the case of a will any grant of probate thereof), and any provision in such instrument or order, or any existing contract or arrangement, for the payment to, or retention by, Mitsubishi Finance of remuneration for its services in any such fiduciary capacity, shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to Mitsubishi Finance there were substituted a reference to BOT International.
No testamentary gift shall be adeemed by reason only of the operation of any of the provisions of this Ordinance.
Without prejudice to the generality of any other provision of this Ordinance but subject to any provision of this Ordinance to the contrary effect, the following provisions of this section shall have effect—
All existing contracts, agreements, insurance policies, options, novations, certificates, awards, conveyances, deeds, leases, licences, notices, permits, guarantees, documents granting or comprising any security, bonds, indemnities, mandates, instructions and other instruments and undertakings entered into by, made with, given to or by or addressed to Mitsubishi Finance (whether alone or with any other person and whether as principal or agent and whether in writing or not) shall be construed and have effect on and from the appointed day as if—
BOT International had been a party thereto instead of Mitsubishi Finance;
for any reference (however worded and whether express or implied) to Mitsubishi Finance there were substituted, as respects anything falling to be done on or after the appointed day, a reference to BOT International;
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of Mitsubishi Finance were, as respects anything falling to be done on or after the appointed day, a reference to the directors of BOT International or, as the case may require, to such director, officer or employee of BOT International as BOT International may appoint for that purpose or, in default of appointment, to the director, officer or employee of BOT International who corresponds as nearly as may be to the first-mentioned director, officer or employee:
Provided that this paragraph shall not apply to the merger agreement or any agreement expressed to be made pursuant or supplemented thereto.
Paragraph (a)(ii) shall, subject to the provisions of section 18, apply to any statutory provision, to any provision of any existing contract to which Mitsubishi Finance was not a party and to any provision of any other existing document (not being a contract or a will) as they apply to a contract to which that paragraph applies.
Any account between Mitsubishi Finance and a customer shall, on the appointed day, be transferred to BOT International and become an account between BOT International and such customer subject to the same conditions and incidents as theretofore; and such account shall be deemed for all purposes to be a single continuing account; provided that nothing in this Ordinance shall affect any right of BOT International or of any customer to vary the conditions or incidents subject to which any account is kept.
Any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent (whether in writing or not and whether or not in relation to an account) given to Mitsubishi Finance, either alone or jointly with another person, shall apply and have effect, on and from the appointed day, as if given to BOT International or, as the case may be, to BOT International jointly with such other person.
Any negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, Mitsubishi Finance, or payable at any place of business of Mitsubishi Finance, whether so drawn, given, accepted or endorsed before, on or after the appointed day, shall have the same effect on and from the appointed day, as if it had been drawn on, or given to, or accepted or endorsed by BOT International, or were payable at the same place of business of BOT International.
The custody of any document or record, goods or other thing held by Mitsubishi Finance as bailee shall pass to BOT International on the appointed day, and the rights and obligations of Mitsubishi Finance under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of BOT International.
Any security held immediately before the appointed day by Mitsubishi Finance, or by a nominee or agent of or trustee for Mitsubishi Finance, as security for the payment or discharge of any liability shall, on and from the appointed day, be held by, or, as the case may require, by that nominee, agent or trustee for, BOT International, and be available to BOT International (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of that liability;
in relation to any security deemed to be vested in BOT International in accordance with the provisions of this Ordinance and any liabilities thereby secured, BOT International shall be entitled to the rights and priorities and be subject to the obligations and incidents to which Mitsubishi Finance would have been entitled and subject if it had continued to hold the security;
without prejudice to the generality of subparagraph (ii), in any case where any existing liability subsists between Mitsubishi Finance and BOT International in respect of which Mitsubishi Finance or BOT International, or a nominee or agent of or trustee for Mitsubishi Finance or BOT International holds security, that liability shall, for the purpose of enforcing or realizing that security, be deemed to continue in effect notwithstanding the vesting of the undertaking in BOT International;
any security referred to in subparagraph (i), (ii) or (iii) and which extends to future advances or liabilities shall, on and from the appointed day, be available to BOT International (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of future advances and liabilities to the same extent and in the same manner in all respects as future advances by, or liabilities to, Mitsubishi Finance were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of Mitsubishi Finance is deemed to become a right or liability of BOT International, BOT International and all other persons shall, on and from the appointed day, have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that right or liability as if it had at all times been a right or liability of BOT International; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against Mitsubishi Finance may be continued by or against BOT International.
Any judgment or award obtained by or against Mitsubishi Finance and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against Mitsubishi Finance, become enforceable by or against BOT International.
Nothing in this Ordinance shall terminate or prejudicially affect the appointment, authority, rights or powers of any receiver or of any receiver and manager appointed by Mitsubishi Finance, whether alone or with others, before the appointed day.
On and from the appointed day, by virtue of this Ordinance and notwithstanding the provisions of any other Ordinance—
the balance sheets and profit and loss accounts of Mitsubishi Finance and BOT International for the financial year of each company in which the appointed day falls shall be prepared in all respects as if the undertaking had vested in BOT International pursuant to section 5 on the first day of such financial year of Mitsubishi Finance;
any retained profits of Mitsubishi Finance as at the first day of such financial year and any reserves arising on the vesting of the property and liabilities of Mitsubishi Finance in BOT International pursuant to section 5 shall become the retained profits of BOT International;
every existing reserve of Mitsubishi Finance shall be transferred to and for all purposes be and become a reserve of BOT International; and
the amount, description and character of every reserve of BOT International which shall come into being pursuant to paragraph (c) shall be the same in all respects as those of the corresponding existing reserve immediately before the appointed day, and all enactments and rules of law shall apply to or in respect of every such reserve of BOT International in the same manner in all respects as they applied to or in respect of the corresponding existing reserve immediately before the appointed day.
Every reference in subsection (1) to an existing reserve shall include a reference to any reserve or similar provision, irrespective of its name or designation (and whether the amount thereof be positive or negative in nature) and, without prejudice to the generality of the foregoing, every such reference shall include a reference to any sums standing to the credit (or debit) of any profit and loss account.
Without prejudice to the generality of subsection (1), any profits or losses of Mitsubishi Finance earned or incurred after the beginning of the financial year of Mitsubishi Finance in which the appointed day shall occur, shall on and from the appointed day, by virtue of this Ordinance, be treated for all purposes as profits or, as the case may be, losses, of BOT International.
Section 7(a) shall apply to a contract for the employment of any person by Mitsubishi Finance and employment with Mitsubishi Finance and BOT International under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of Mitsubishi Finance shall by virtue only of this Ordinance become a director or, as the case may be, auditor of BOT International.
The deeds and rules constituting or relating to the provident fund scheme established for the benefit of employees of Mitsubishi Finance and the gratuity benefits payable by Mitsubishi Finance shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to Mitsubishi Finance there was substituted a reference to BOT International.
No officer or employee of Mitsubishi Finance who is deemed to become an officer or employee of BOT International by virtue of this Ordinance shall by virtue of this Ordinance be entitled to participate in any provident fund of or gratuity benefits payable by BOT International, and no existing officer or employee of BOT International shall, by virtue only of this Ordinance, be entitled to participate in any provident fund of or gratuity benefits payable by Mitsubishi Finance.
Any provision contained in any contract to which either BOT International or, as the case may be, Mitsubishi Finance is a party which prohibits or has the effect of prohibiting the transfer and vesting of the undertaking from Mitsubishi Finance to BOT International shall be deemed by this Ordinance to have been waived.
Any provision contained in any contract to the effect that a default shall occur or be deemed to occur as a result of the transfer and vesting of the undertaking from Mitsubishi Finance to BOT International and to which either BOT International or, as the case may be, Mitsubishi Finance is a party shall be deemed by this Ordinance to have been waived.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against Mitsubishi Finance shall be admissible in evidence in respect of the same matter for or against BOT International.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of Mitsubishi Finance deemed to be vested in BOT International by virtue of this Ordinance, and to entries made in those records before the appointed day, as if such records were the records of BOT International.
For the purposes of section 20 of the Evidence Ordinance, banker’s records which are deemed to have become the banker’s records of BOT International by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of BOT International at the time of the making of any entry therein which purports to have been made before the appointed day, and any such entry shall be deemed to have been made in the usual and ordinary course of business.
The production of a Government Printer’s copy of this Ordinance shall, for all purposes, be conclusive evidence of the deemed vesting of any property and liabilities of Mitsubishi Finance in BOT International in accordance with the provisions of this Ordinance.
Without prejudice to the generality of subsection (1)—
a Government Printer’s copy of this Ordinance, together with such evidence of publication of notice of the appointed day, shall, in relation to any registered securities transferred to, and vested in, BOT International by virtue of this Ordinance, operate for all purposes as a duly executed instrument of transfer in respect of the transfer of such registered securities from Mitsubishi Finance to BOT International;
any deed or other document made or executed on or after the appointed day, whereby BOT International or Mitsubishi Finance, whether alone or jointly with any other person, conveys or transfers, or purports to convey or transfer, to any person (whether for consideration or not), or applies to be registered as the holder or proprietor of, any property held by Mitsubishi Finance immediately before the appointed day, whether alone or jointly with any other person, shall be sufficient evidence that the interest of Mitsubishi Finance in that property is deemed to be vested in BOT International under this Ordinance;
where there is any other transaction or purported transaction by BOT International or Mitsubishi Finance on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of Mitsubishi Finance immediately before that day, it shall be deemed in favour of any other party to the transaction, or any person claiming through or under him, that BOT International has full power and authority for that transaction as if the property or liabilities were deemed to be vested in it under this Ordinance;
a joint certificate given by or on behalf of BOT International and Mitsubishi Finance before the appointed day, or a certificate given by or on behalf of BOT International on or after the appointed day, that any property or liabilities specified in the certificate (which property or liabilities immediately before the appointed day are property or liabilities of Mitsubishi Finance) is at the date so specified deemed to be vested in BOT International under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified;
nothing in paragraphs (b) and (c) shall affect the liability of BOT International and Mitsubishi Finance to the other of them in respect of anything done, or purporting to have been done, by either of them in connection with, or in relation to, any property or liabilities; and
in this subsection (2)—
convey (轉易) includes mortgage, charge, lease, assent, vest by way of vesting declaration or vesting instrument, disclaim, release or otherwise assure; registered securities (註冊證券) means shares, stocks, debentures, loans, bonds, units of a unit trust scheme or other shares of the investments subject to the trusts of such a scheme, and other securities of any description which are transferable and the holders of which are entered in a register (whether maintained in Hong Kong or not).Nothing in this section applies to any property falling within section 15.
Where the transfer and vesting of any property forming part of the undertaking of Mitsubishi Finance is governed otherwise than by the law of Hong Kong, Mitsubishi Finance shall, if BOT International so requires, so soon as is practicable after the appointed day, take all necessary steps for the purpose of securing the effective transfer or vesting thereof to or in BOT International and, pending such transfer or vesting, shall hold such property in trust for the BOT International.
The deemed vesting in BOT International of an interest in land by virtue of this Ordinance shall not—
constitute an acquisition, assignment, transfer or parting with possession of that interest for the purposes of section 53(4)(a) or (7)(a) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7); or (Amended 16 of 2004 s. 16)
constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of that interest for the purposes of any provision contained in any instrument concerning or affecting that interest; or
operate as a breach of covenant or condition against alienation; or
give rise to any forfeiture, damages or other right of action; or
invalidate or discharge any contract or security; or
operate so as to merge any leasehold interest in the reversion expectant on it.
To enable the BOT International to complete a title, if thought fit, to any property transferred to it and vested in it by virtue of this Ordinance by notice of title, deed, instrument or otherwise, or to deduce title, this Ordinance shall be deemed to be, and may be used as, an assignment or assignation, conveyance, transfer or, as the case may be, general disposition of such property in favour of BOT International.
Nothing in this Ordinance shall exempt Mitsubishi Finance or BOT International or any other subsidiary of Mitsubishi Finance or BOT International from the provisions of any enactment regulating the carrying on of the business of any of them.
Nothing in this Ordinance shall prejudice the powers of BOT International to alter its articles of association or to dispose of, or deal with, its property, security or liabilities or to carry on or discontinue any part of its business; and nothing in this Ordinance shall prejudice the powers of Mitsubishi Finance to dispose of, or deal with, its property, security or liabilities before the appointed day.
(Amended 28 of 2012 ss. 912 & 920)
Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other persons except such as are mentioned in this Ordinance and those claiming by, from or under them. (Amended 60 of 1999 s. 3)
Nothing in this Ordinance shall affect the liability of BOT International to settle the consideration for the undertaking under the merger agreement.